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Conflicting Rights

September 30, 2014 permalink

Lawyer John P Schuman advises Ontario parents to speak to CAS workers when the workers are protecting children. The same parents should remain silent when CAS workers are investigating a crime. As for children, parents cannot prevent CAS workers from interviewing them at school. The parents do not even have a right to be present in person or through their lawyer. The child however has a right to have his own lawyer present.

Schuman does not say how a parent can speak and remain silent at the same time. And how many young children have the knowledge to ask for a lawyer when questioned? Getting a lawyer for a child increases the likelihood of family destruction, since frequently the child's lawyer sides with the CAS.



Can a Children's Aid Society Interview my Children without my consent? Should I speak to the CAS?

children playing

Yes. In Ontario, a Children’s Aid Society has the right to interview children without their parents’ consent during the course of a child protection investigation (an investigation into abuse or neglect). The Ministry of Children and Youth Services included interviewing children in the standards for the proper conduct of child protection investigations. Decisions in Ontario’s Child Protection Courts then said that functions of children’s aid societies under s. 15(4) the Child and Family Services Act must conducted in a manner consistent with those standards, which means the Act requires interviews of children. Since the standards say that children should be interviewed in the absence of the adults under investigation, that means the children’s aid society must interview children alone. The school cannot stop the CAS from interviewing a child either. There may be issues as to whether a particular CAS worker is qualified to interview a child with specific special needs. However, refusing to let a child speak to a CAS worker only makes it look like you are trying to hide something and you are afraid that the child may tell the CAS that you are abusing him or her.

Children are allowed to have a lawyer present while being interviewed. However, it is the child’s right to have the assistance of a lawyer not the parent’s right to have the child have a lawyer. It must be the child who seeks out and retains the lawyer, not the parent. When a parent intervenes to get a child the lawyer, that also looks like the parent trying to interfere with the child protection investigation to hide something. In short, if a parent sends a lawyer into the interview with the child, that looks bad to both the children’s aid society and the judge.

Whether you speak to a CAS worker yourself is a more complicated matter - and you really need to consult with a lawyer who does child protection law. If you do not cooperate with the CAS, that will be held against you. However, if the concerns are that you did something contrary to the Criminal Code, then you also have a right not to speak to the CAS because the CAS worker will tell the police every thing you say. If you are charged, you statements may be used against you in criminal court. If you do not speak, your refusal to speak to the CAS may be used against you in child protection court and make it difficult for you to get your kids back if the CAS takes them. This is a very difficult situation to be in. Child protection lawyers (the small number of family lawyers who do Children's Aid Society cases) can give you a lot of valuable advice, specific to your situation, to try to keep you out of trouble.

Another good reason to speak to child protection lawyer right away is that there is a big advantage to having a lawyer ready to fight back right away if the Children's Aid Society does take your kids, or starts court proceedings, or asks you to sign an agreement permitting the agency to be in your life.

John Schuman is a Certified Specialist in Family Law who has done children’s aid society cases for more than 15 years, acting for parents, children’s aid societies and native “bands” (the term in the Child and Family Services Act for First Nations.

Source: John P. Schuman

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